Environmental Criminal Enforcement in Taiwan

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With Kaohsiung Environmental Protection Bureau Director General Meng-Yu Tsai

On Friday (June 16), I led a workshop on environmental criminal enforcement at the Kaohsiung City/County Environmental Protection Bureau in South Taiwan (where I was for a conference at the National University of Kaohsiung).  It was a really fascinating discussion with the local regulators about the issues presented by the choice of administrative vs. criminal enforcement and how the US approach differs.   (In Taiwan, environmental enforcement proceeds through an administrative court system that is the mark of a number of civil law systems.)  While there is close cooperation by the environmental agencies with prosecutors in investigating and bringing criminal cases, there is still a learning curve on these issues.

More importantly, like in the United States, the applicable burden of proof on these issues is controversial.  This also came up in an interesting meeting I had with the Taiwan Environmental Protection Administration Minister Dr. Ying-Yuan Lee (whom I had the honor to spend a little bit of time with a few days ago).  A notable prosecution in recent years against a semiconductor company had resulted in a criminal conviction for pollution violations.  Unfortunately, the subsequent appeal led to a reversal of the conviction, primarily because the appeals court thought that a higher standard of proof should have been applied by the trial court.

with Minister Ying-Yuan Lee (center)

One take-away for me from these meetings and workshops is that criminal environmental enforcement issues are clearly being thought about very carefully.  They are important as a tool for supplementing traditional environmental enforcement penalties, especially when those non-criminal penalties are not providing a sufficient inducement to polluting industries to comply with the law.  Another take-away was that the effect of China’s continuing efforts to isolate Taiwan internationally has also impeded cooperation on environmental matters.  Too bad, given Taiwan is doing a lot of work in this area. But also because Taiwan is heavily industrialized in some parts of country, including Kaohsiung, and so has much experience to share. 

 

What company is the US keeping in the business of international environmental treaties?

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The coverage of the Paris Agreement in light of Trump’s withdrawal decision has been quite remarkable.  It seems as if the world just got a crash-course on the treaty.  Every news article is now able to point out that the Agreement is essentially non-binding, that nothing will change for at least three years (since the Agreement does not allow withdrawal during the first three years), and that there are just a couple of countries that have not signed the Agreement, etc. etc. (Nicaragua and Syria, see explanation by Washington Post.)

There are only a few environmental treaties where membership is truly universal, such as the Montreal Protocol on Ozone Depleting Substances and the underlying Vienna Convention on the Protection of the Ozone Layer, as well as the UN Framework Convention on Climate Change (the underlying framework treaty for the Paris Agreement), all of which have 197 member countries.  That includes the 193 UN countries, plus the European Union, the Holy See/Vatican, and a couple of other small non-UN member states.

But there are also a number of other international environmental treaties where the US part of a small group of countries that are not members.  For example, the Basel Convention on the Transboundary Movement of Hazardous Wastes has 185 member countries.  But apart from the U.S., the only other states that are not members are small island nations or poor developing countries –  Angola, Fiji, Grenada, Haiti, San Marino, Sierra Leone, Solomon Islands, South Sudan, Timor-Leste, Tuvalu, and Vanuatu.

However, the US is in an even more lonely place with the 1992 Convention on Biological Diversity (CBD).  That treaty is the other important environmental treaty from the 1992 Rio Earth Summit (the first one being the UN Framework Convention on Climate Change).  The CBD has 196 member states (including the EU and other small non-UN countries).  The Holy See is not a member – of course, that seems to make sense since it has little territory and thus little in natural area to control.  The more notable exception however is . . . the U.S.

 

 

 

Is it better for the US to be out of the Paris Agreement than to stay in?

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Even though Trump’s withdrawal decision cannot be acted on until November 2019 (after the three year waiting period required under article 28 has run, starting from November 4, 2016), the rest of the world is apparently prepared to move forward without the U.S.  A commentary in Nature Climate Change (published before the Trump announcement) even made the argument that it could be in the best interest of global climate cooperation if the U.S. left the Paris Accord rather than stay in (given the policies of the Trump Administration).  The commentary does make some important points.  And while I am not going to repeat what’s already been said more generally about the damage that the withdrawal decision will do, there are a few other observations worth sharing here.

1.  The commentary seems to imply that once the US is out of Paris, American officials will simply stand idly by while the Paris parties will go on their business.  That is extremely unlikely.  The best likely outcome (for the Paris Accord), given Trump’s in-your-face foreign policy approach, would be for the US government to take only the actions necessary to protect the U.S. and its economy from any adverse effects of the Paris Accord.  At worst, the US could attempt to actively undermine the Paris system entirely.  I shudder to think what that might mean, but there is precedence for countries doing such things.

There is also the Kyoto Protocol precedent that provides a glimpse of what the climate change treaty system can accomplish without the US as a participant.  In 2001, George W. Bush announced that the U.S. would never join the 1997 Kyoto Protocol, which led to the U.S. sitting out the establishment of the international carbon trading system.  To this day, the U.S. has not participated in any of those carbon mechanisms.  It’s not clear to me who ended up worse off  — the U.S. or the rest of the world.  But clearly, having the U.S. be part of these systems would have been preferable.

Of course, there is a potential game-changer with the Paris Agreement – China has affirmed its continued commitment to it.  If China really follows through, continues to do more (as will be necessary) to address climate change, and works with the EU, India, and Russia, the US could truly be sidelined.  That would be great for the world and the global environment, but likely bad news for US in ways that may not become clear for some time to come.

2.  U.S. climate policy is not only advanced by the Trump Administration but also in Congress and in state capitols.  Withdrawal from the Paris Agreement will make it that much more difficult for these other entities to be engaged, for example, in the event that the Democrats win back both Houses of Congress in 2018. Non-membership essentially imposes an additional barrier for engagement and will make it more difficult to pressure the White House to take positive action.

On the other had, one could also envision a scenario where the withdrawal from the Paris Agreement does not become effective until November 2020 (three years wait + one year notice for effectiveness of withdrawal).  If a Democrat then defeats Trump in his reelection bid, the new President could then sign and deposit a new instrument of acceptance with the Paris Agreement on January 20, 2021, leaving just a few months gap in membership.

3.  Arrangements like the Paris Climate Agreement are not only mechanisms for governmental leaders and diplomats to “do” things but also to “talk” and engage in efforts to find consensus about common goals and interest.  It would be a shame if the US lost all stake to work on fixing our climate problem, as it did to a large extent when the U.S. sat out the Kyoto Protocol.  For everybody’s sake, if Trump goes through with ditching the Paris Accord, I sure hope that it won’t take another 1-2 decades for the U.S. to join another climate agreement.

Paris Agreement adieu

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Wow (not in a good way) . . . Earlier, I watched (online) Trump’s Rose Garden speech announcing the US withdrawal from the Paris Agreement.  Todd Stern, the former chief climate negotiator for the US and person in the lead for the US of creating the Climate Agreement, already posted an op-ed piece about the withdrawal announcement in the Washington Post, which probably expresses the sentiment of many, including myself.

As on other occasions, Trump’s speech was internally contradictory — according to the speech, the Paris Agreement requires draconian measures, but at the same time also requires nothing (of course – it’s non-binding in regard to its key emission reduction commitments).  He also said that the Agreement does little to cut emissions, but then at the end he railed against it because it is just a starting point (which is accurate) and that later emission reduction commitments will get more stringent.  All of this can only be described as incoherence and contradiction in action.  Yet, it is probably consistent for an individual who believes that climate change science is a hoax and that none of the international efforts really matter.  And it is also consistent with Trump’s campaign promises.

Punditry on Paris Agreement

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Wow, I just watched tonight’s segment on PBS News Hour about Trump’s deliberations on the Paris Climate Agreement, featuring Michael Oppenheimer and Phil Kerpen (of the conservative group American Commitment).  I was rather surprised by the inaccuracies and distortions that came from Kerpen, ranging from his statement that the Paris Agreement “climate benefits are illusory” (of course not) to the falsity that the “agreement locks in … EPA regulations” such as the Clean Power Plan.  Kerpen seems to have missed the boat on the fact that the Paris Agreement’s emission reduction commitments are non-binding and so would not mandate any domestic EPA regulations.  Later on he also talks about how the agreement “imposes draconian cuts on the United States,” again false since the commitments are non-binding.   He really needs to get his facts and understanding of the Paris Agreement straight before he goes on a show like the PBS News Hour.   The non-binding nature of the emission reduction commitments was a central issue in the Paris negotiation, designed to help the U.S. but also strongly opposed by many other countries. Fortunately, Kerpen at least got it right that natural gas substitution for other fossil fuels has already helped drive down US emissions in recent years, meaning that some parts of the US emission reduction promises for Paris will be achieved regardless of any EPA regulations.

Whew – we can only wait with bated breath for Trump’s decision whether to pull out or stay in.

Did you know that North Korea has a general environmental protection law?

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220px-Flag_of_North_Korea.svgAs well as a full-blown environmental impact assessment law?  If you are not surprised, you should be.  After all, the “hermit kingdom” is not generally associated with the rule of law.  But it is true.  North Korea’s general environmental protection law dates to 1998 and its environmental impact assessment law to 2005.  Anyone dying to look this up can see it on the Kimchi Law Blog at https://kimchilaw.wordpress.com/north-korean-laws-2/ (scroll down to see item 45).  [Apparently, the author of the Kimchi Law Blog got his hands on a bound volume of North Korean laws and was kind enough to scan and upload it.]

For those unfamiliar with environmental impact assessment law, such laws generally create a duty for government agencies to study potential significant adverse environmental impact of a project proposal or other development activity before a license or some other government permission is granted.  The concept and legal duty is the bedrock of modern environmental law and was first created in the United States through the National Environmental Policy Act of 1969.  It was thus also the first of the modern environmental laws, both in the U.S. and across the world.  Since then, the EIA duty and processes have been widely adopted across the world to such an extent that they are now nearly universal.

Of course, these laws don’t mean a heck of a lot when they are not implemented or enforced.  And that varies immensely across countries.  One can only guess as to how effective environmental laws are in North Korea.  One indication is that the requirements contained in the law appear to be quite general and generic.

 

Taiwan’s Constitutional Court Rules in Favor of Same-sex Marriage

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In a rather remarkable, progressive, and individually rights-minded decision, Taiwan’s Constitutional Court ruled that its Constitution guarantees the right of same-sex couples of get married and ordered the legislature to change its laws within the next couple of years.  Here’s a link to the Court’s official English-language press release, and general webpage which has a link to Chinese-language full opinion.  In the first footnote of the Chinese language opinion, the Court cites the 2015 US Supreme Court decision in Obergefell.

That makes Taiwan the first place in Asia to allow gay marriage and shows how different from mainland China it is now as a society, in terms of its values, commitment to individual rights, and the rule of law.   I’ll be in Taiwan in a few weeks to speak at a water pollution conference, and I’ll be really interested to see this plays out there.

Professor Patrice Simms joins Earthjustice as a Vice President for Litigation

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This happened a couple of weeks ago, but still a great development.  My good friend Patrice Simms, law professor at Howard University Law School, is joining Earthjustice as a Vice President for Litigation.  Earthjustice is fortunate to get him (though he was already a member of the Board of Trustees and so has stepped down from that role).

Here’s the link to the Earthjustice press release:  http://earthjustice.org/news/press/2017/leading-environmental-attorney-and-legal-scholar-joins-earthjustice

Hon. Leon Panetta Commencement Speech at 2017 Santa Clara Law Commencement

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Inspiring commencement speech by former Secretary of Defense and 1963 SCU Law graduate Leon Panetta at Santa Clara Law’s 2017 commencement exercises on Saturday.

https://www.scu.edu/news-and-events/press-releases/2017/may-2017/a-trumpet-call-to-defend-the-rule-of-law.html

Here’s an excerpt from linked article:

“The story of the last election was the story of lost trust, angry voters who felt that no one in Washington, no political party, was working to deal with the problems they were facing,” he said.

He said such divisions are surmountable, but “you cannot be a good leader or a good citizen if you do not respect our Constitution and the institutions responsible for enforcing the requirements of that sacred document.”

Panetta is the son of immigrants, and he told of how his parents traveled thousands of miles to give their children a better life. “We are a nation that builds bridges, not walls,” he said. “And most of all, we need to respect the truth.”

He told a story of when he was CIA director and met the families of seven CIA employees killed by a suicide bomber in Afghanistan in 2009. He said he gave each family a plaque with a biblical verse from Isaiah: “Whom shall I send? … Here I am Lord. Send me.”

“That, ladies and gentlemen,” said Panetta, “is the sound of the trumpet that must summon all of us to action.”

It was a great call to service for our graduates as they enter the profession and an inspiring message impressing on them that their chief duty is to justice and the rule of law .  Godspeed to all of them.

Checking out the fish (and fisheries management) at the Monterey Bay Aquarium

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The photo above:  Three weeks ago, after a great morning that the Monterey Bay Aquarium looking at fish and talking fisheries management with the students in my International Environmental Law course.  Super great appreciation and thanks to the Aquarium for providing complimentary admission for my class. The youngest there, on the far left, could have been a super-precocious Class of 2035 law student . . . but in reality was my research fellow Laura Davis’ daughter.  Unfortunately, none of the muslim women in my class felt comfortable joining the photo.

Trump Executive Order seeking to undo Obama climate actions issued today

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It’s a sweeping Executive Order that requires review of the Obama era Clean Power Plan regulations and then likely rescission of those rules, as well as rescinds federal government guidance documents providing for better accounting of the social cost of carbon pollution and climate change.  Pretty sad day not only for environment but everybody, though action was long anticipated.  Especially sad is President Trump’s hoax that coal mining jobs will come back because of this action.  Those jobs are never coming back.  The coal mining industry is in bad shape because of competition from cheap natural gas, not because environmental regulations.

Advice for Law Students in Santa Clara Law’s Student Newspaper “The Advocate”

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I just noticed that they questionnaire/advice I provided to students in “The Advocate,” Santa Clara Law’s student newspaper, came out more than a month ago, February 17.  Nevertheless, here it is, for your amusement, with a link to the Advocate.  I posted the relevant page below. Dori Pina’s advice came first, so you’ll need to scroll down a bit.

Santa Clara Magazine’s Article (“For the Record”) on Distinguished Alumnus John Cruden (Law ’74)

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Santa Clara Magazine, our university’s alumni magazine, recently did a very nice piece on one of our illustrious alumni John Cruden (Law ’74).  [By the way, the bear (Grizzly?), in the background, displayed in the office of Assistant Attorney General for the Environmental and Natural Resources Division of the US Department of Justice, is a courtesy of a loan from the U.S. Fish and Wildlife Service.]

https://magazine.scu.edu/scm/spring2017/features.cfm?b=439&c=24023

Fellowship: Legal Fellow (2017-18), Vermont Law School, Center for Agriculture and Food Systems (Deadline: unclear, South Royalton, VT)

https://vermontlaw.interviewexchange.com/jobofferdetails.jsp?JOBID=85506

Legal Fellow – Center for Agriculture and Food Systems

The Legal Fellow at the Center for Agriculture and Food Systems (CAFS) will work with faculty, staff, and students on legal projects and initiatives, helping to oversee and implement grant-funded legal and policy projects to support sustainable food and agriculture. CAFS initiatives include the Healthy Food Policy Project and the Farm to School State Legislative Survey, among others. The Legal Fellow develops novel legal tools to improve food and agriculture; translates those tools for broad use (e.g., through social media, web resources, and in-person trainings); supervises students; conducts outreach to local, regional, and national organizations to create strategic partnerships that amplify our progressive work; and helps to develop funding sources.  This is a two-year position, with the second year contingent on funding availability and on performance.

 

Qualifications

  • Bar Licensure (VT Bar a plus, but not required)
  • A demonstrated commitment to public interest work – a background in food and agriculture is desirable but not required
  • Excellent legal analysis, research, and writing
  • High degree of professionalism in all aspects of lawyering
  • Strong interpersonal skills
  • Creativity and flexibility in approaching and solving problems

For more information on this and other positions, please visit our website at http://www.vermontlaw.edu/community/about-vls/employment-opportunities.

Apply via the link above or send a resume and cover letter with salary requirements to Human Resources, Vermont Law School, P.O. Box 96, South Royalton, VT 05068 or to cbrackett@vermontlaw.edu.

Vermont Law School is an equal opportunity employer committed to diversity in our workforce.